FINAL REPORT REFORM OF THE ADMINISTRATIVE JUSTICE SYSTEM IN NOVA SCOTIA Law Reform Commission of Nova Scotia January 1997 The Law Reform Commission of Nova Scotia was established in 1991 by the Government of Nova Scotia under an Act to Establish an Independent Law Reform Commission. The Commissioners are: William Charles, Q.C., Co-President Dawn Russell, Co-President Theresa Forgeron Jennifer Foster Justice David MacAdam Gregory North, Q.C. Dale Sylliboy Anne Jackman, LL.B., LL.M. is Acting Executive Director of the Commission. Dr. Moira McConnell was Executive Director of the Commission until December, 1996 and had primary responsibility for this project. Legal research assistance in this project was also provided by Lora MacEachern, LL.B., Karen Hollett, LL.B., Nathalie Bernard, LL.B., LL.M. and Randall P.H. Balcome, LL.B., LL.M. In addition, this project has benefitted from research regarding human rights law in Nova Scotia provided by Toni Gore, Aileen J. MacIsaac, LL.B, and Rodney Mapp, LL.B. and funded in part by the Federal Department of Justice under its Human Rights Research funding. The Commission offices are located at 1484 Carlton Street, Halifax, Nova Scotia, B3H 3B7. The telephone number is (902) 423-2633; the fax number is (902) 423-0222 and the e-mail address is [email protected]. The Commission's research is also accessible through the Chebucto Community Net at http://www.chebucto.ns.ca/Law/LRC/LRC-home.html or under Nova Scotia Government and Politics, Legislation in Nova Scotia. The Law Reform Commission receives funding from the Nova Scotia Department of Justice and the Law Foundation of Nova Scotia. The Commission gratefully acknowledges this financial support in carrying out its research projects. Canadian Cataloguing in Publication Data: Law Reform Commission of Nova Scotia Final Report on Reform of the Administrative Justice System in Nova Scotia, January 1997. Law Reform Commission of Nova Scotia TO: The Honourable J. Abbass Minister of Justice In accordance with section 12(3) of the Law Reform Commission Act, we are pleased to present the Commission's Final Report Recommendations for Reform of the Administrative Justice System in Nova Scotia. Theresa Forgeron, Commissioner Jennifer Foster, Commissioner Justice David MacAdam, Commissioner William Charles, Q.C. Co-President Gregory North, Q.C. Commissioner Dawn Russell Co-President Dale Sylliboy, Commissioner TABLE OF CONTENTS Page SUMMARIES English................................................................ i French .............................................................. viii I INTRODUCTION .........................................................1 1. The Administrative Justice Project..................................1 2. Language ......................................................6 II THE ADMINISTRATIVE JUSTICE SYSTEM IN NOVA SCOTIA ...............9 1. The Administrative System........................................9 2. The Administrative Justice System.................................11 3. Existing Legal Principles Relating to the Practice of Administrative Law in Nova Scotia..................................................15 4. Summary.....................................................25 III RECOMMENDATIONS FOR REFORM ....................................27 A. Overview of the Commission's Research and Preliminary Suggestions and Public Commentary to the Discussion Paper .......................................27 1. The Discussion Paper...........................................27 2. Public Comments on the Suggestions in the Discussion Paper ...........30 3. Summary.....................................................36 B. The Commission’s Recommendations For Reform.............................37 1. The Administrative Justice System.................................37 2. A Law Setting Out Minimum Procedures............................45 3. Standard Powers for Administrative Tribunals ........................58 4. Simplifying Judicial Review and Appeals............................62 5. Ensuring Independence of Administrative Tribunals ...................70 IV SUMMARY OF RECOMMENDATIONS ....................................74 V DRAFT ADMINISTRATIVE JUSTICE ACT ..................................77 APPENDICES "A" List of people who assisted on an advisory group and list of people and organizations who commented on the Discussion Paper. "B" List of agencies that responded to the 1993/94 survey. "C" Chart of appeals found in the Consolidated Statutes of Nova Scotia. "D" Suggested curriculum for a training course for ABC (Agencies, Boards and Commissions) appointees. “E” List of suggestions in Discussion Paper 1996. REFORM OF THE ADMINISTRATIVE JUSTICE SYSTEM IN NOVA SCOTIA SUMMARY In 1991, a Task Force reviewing the structure of courts as part of the system of delivery of justice in Nova Scotia found that: Little is written about Nova Scotia's administrative tribunals. We were unable to find anyone who knows exactly how many there are...There are no uniform powers and practices for administrative tribunals or minimum protection for parties except as are provided by the common law. The members of these agencies are often part-time, untrained and unfamiliar with the practices required by administrative law. Few of them have access to independent legal counsel. Few tribunals publish rules of practice. The Task Force was told that decisions of some tribunals are difficult to find. Certainly there is no central repository for rules, decisions and other directives issued by agencies... [There is also] the lack of a standard procedure for judicial review of tribunal decisions...[and a] lack of uniform procedural standards by which administrative tribunals conduct themselves. In response to these concerns, the Minister of Justice requested (by a formal letter of Reference) that the Law Reform Commission of Nova Scotia undertake a project to: ".... consider the state of administrative law in the Province and in particular, to develop draft legislation that: (a) standardizes the powers and procedures of administrative tribunals; (b) guarantees parties appearing before the tribunals basic procedural rights and safeguards; (c) simplifies administrative law, particularly with regard to judicial review and appeal; and (d) ensures the requisite degree of independence when a tribunal is required to act in a judicial fashion." The Commission carried out research on all of these issues and in 1996 published a Discussion Paper called, Agencies, Boards and Commissions: The Administrative Justice System in Nova Scotia which sets out the Commission’s preliminary suggestions for reform. The Commission received a number of comments from members of the public responding to its suggestions. Its Final Report is based on these suggestions which have been revised in light of these public comments and further research. A number of key concerns emerged from both the Commission's research and the public comments including the following: C It is clear that there is concern about the fact that the administrative justice system is difficult for people to understand and there is a concern about the lack of public faith in the system. C At the same time there is concern that altering existing structures and standardizing procedures in the name of "legal rights" may cause more problems and delays and not necessarily achieve better results. In addition, there is concern that creating new rules simply involves more cost, particularly where existing procedures may meet the concerns that new rules would be addressing. C Many people feel that if you have "good appointments and good people" you will get good results. There are a variety of ways people feel that you can have "good appointments", including a transparent or open appointment process where people are appointed on the basis of qualifications which are related to publicly stated criteria. However, there will always be some difference of opinion as to the criteria for who is a "good appointment" and whether “political” or patronage appointments are always wrong or are a matter for the democratic process. The fact that the appointees are often either volunteers or sectoral nominees or, in many cases, simply a government staff person carrying out another role adds another layer to the problem. C There is concern that many appointees to agencies, boards and commissions ("ABCs"), particularly those that carry out hearings and manage public resources, are not given training to help them carry out their responsibilities. One way to ensure better decisionmaking is to provide some training and information to help these people make better decisions and to fulfill their responsibilities. C In connection with consolidation and simplification of the appeal processes, there is a concern that the expertise and flexibility that many feel exists in their current structures should not be lost in any changes. There is a need to consider whether creating a new "super" board will in fact reduce costs and improve efficiency or whether it will simply create more delay in the system before people can go to court to obtain "administrative justice". C There is a concern that the legal rules governing judicial review in Nova Scotia are not written in a way which can be easily understood by anyone including those with legal training. The main recommendation of the Commission in this Report is that the Government adopt the draft Administrative Justice Act which it has developed. The Act sets a "floor" of minimum procedural requirements and